This Client Service Agreement (the "Agreement") is made by and between Totem Entertainment , a French Corpotation ("toteme.com"), and you, as an Client utilizing the toteme.com service ("You", "Your", "Client").
You must agree to abide by the terms and conditions contained in this Agreement in order to participate. Please read this Agreement carefully before registering and using the Service as an Client. By signing up for toteme.com, you indicate Your acceptance of this Agreement and its terms and conditions. If You do not accept this Agreement, do not use the toteme.com Service as an Client.
toteme.com respects the privacy of its users and will not disclose personal information to third parties without the express permission of You and Your company.
Performance Marketing occurs when individual web sites that generate their own traffic ("Clients") partner with online Merchants ("Merchant")’s and the Merchant pays a commission or other reward for those Visitors resulting in a measurable action such as a closed sale, lead, hit, or other action.
Client means an individual or business generating their own traffic and thus rewarded for legitimate sales, leads, downloads, or other measurable action. Clients use toteme.com to facilitate relationships with Merchants as well as gain tracking, reporting, and receipt of commission payment.
Merchant means an e-commerce entity paying a commission or bounty for legitimate sales, leads, downloads, or other measurable action by a Visitor. Merchants use toteme.com facilitate relationships as well as gain tracking, reporting, and issuance of commission payment.
Visitor means any person, or user that clicks on a Link to a Merchant’s Web site placed on an Client's Web site.
sale commission means the Payout the Merchant sets and agrees to pay for Visitors referred to the Merchant's Web site that results in a sale of a product or service. The sale could occur at the time of the visit or at a later time not to exceed 30 days. If a sale occurs after 30 days and the Visitor has not returned through an authorized Client's site, then no Payout shall occur.
lead commission means the Payout the Merchant sets and agrees to pay for Visitors referred to the Merchant's Web site that results in the Visitor performing an action defined by the Merchant. Such an action could include filling out a form, joining a mailing list, or other mechanism to identify potential customers. The action could occur at the time of the visit or at a later time not to exceed 30 days. If an action occurs after 30 days and the Visitor has not returned through an authorized Client's site, then no Payout shall occur.
click commission means the Payout the Merchant sets and agrees to pay for a valid click from an Client Partner's site to the Merchant's site that results in the Merchant's Web site being viewable to the Visitor. A click is deemed valid when it meets certain criteria as defined on the Web site or in this agreement, which criteria may change from time to time.
Payout means the amount of sale commission, lead commission, or click commission a Merchant agrees to pay for an individual measurable action. The Payout is defined as either a percetage of a total sale amount, or as a set bounty (flat rate) per action.
Commission means the amount sale commission, lead commission, or click commission a Merchant agrees to pay for an individual measurable action. The Payout is defined as either a percetage of a total sale amount, or as a set bounty (flat rate) per action.
Link means a hyperlink placed on an Client's site that, when clicked on, sends a Visitor through to a Merchant website via redirection at toteme.com. Links take many forms including text, a product image, buttons, banners, videos or any other format acceptable to the Merchant.
VOID means a reversal of a Payout previously earned for a sale, lead, or click that is later rescinded or corrected by the Merchant. Merchant's may VOID transactions that are fraudulent, or in the case of returned merchandise, duplicate transactions, or other valid reasons.
Your Account means a specific account within the Service, where Commissions are credited.
toteme.com has developed and operates a service (the "Service") which allows Clients to participate in Performance Marketing programs. As an Client of toteme.com you will be establishing arrangements with third party organizations, called Merchants. All Client relationships established between You, the Client, and toteme.com Merchants, will be conducted and managed through the Service.
You will receive a Commission for sending a Merchant authorized sales, downloads, and/or installs via Your Links. In order to place Links, You must first be approved by a Merchant to become an Client of that Merchant’s program. You understand that the Payout amount may be changed at any time. This information is also available to You at the toteme.com Member’s Area. You are responsible for determining if the Payout for a Link You have placed on Your site has changed or been discontinued. You receive the Commission from toteme.com. Payments are made automatically on the twentieth (20th) day of each month when Your account balance reaches $50 or more for the previous months' transactions. Money credited to Your Account does not accrue interest. In the event of a VOID by a Merchant, toteme.com may recover from You the corresponding Commission previously credited to Your Account. The VOID Commission will be immediately deducted from Your Account balance. In the event that Your Account balance is less than the VOID Commission, the VOID Commission will be deducted against Your future earnings. You will NEVER be asked to send money to toteme.com
toteme.com will provide support for the Service as indicated on the toteme.com Web site.
toteme.com reserves the right to send e-mail to You for the purposes of informing you of applicable changes or additions to the Service or any toteme.com related products and services.
toteme.com reserves the right to change, modify, add or remove portions of this Agreement at any time and may add to, change, suspend or discontinue any aspect of the Service at any time. In the event of any material change, toteme.com will notify You via e-mail, newsletter or the toteme.com Web site at least 7 days prior to any such changes taking effect, at which time You may either agree to such changes or withdraw from the Service.
To sign up as an Client of toteme.com and to use the Service as an Client Partner you must be at least 18 (eighteen) years of age, and supply a valid tax-id, which may be your social security number for individuals, or a federal tax-id for corporations or entities.
THE FOLLOWING TYPES OF SITES ARE NOT ALLOWED TO PARTICIPATE IN toteme.com:
As part of the registration process, You will select a username and password combination that You use to access Your Client area within the Service. You shall provide toteme.com with accurate, complete and updated registration information. You may not select the name of another person with the intent to impersonate that person or deceive members or other users as to Your true identity. You agree that toteme.com may rely on any data, notice, instruction or request furnished to toteme.com by You which is reasonably believed by toteme.com to be genuine and to have been sent or presented by a person reasonably believed by toteme.com to be authorized to act on Your behalf. You shall notify toteme.com by e-mail at firstname.lastname@example.org of any known or suspected unauthorized uses of Your Account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of Your username and password. You shall be responsible for maintaining the confidentiality of Your username and password and You are responsible for all usage and activity on Your Account, including use of the account by a third party authorized by You to use Your Account. Any fraudulent, abusive or otherwise illegal activity may be grounds for termination by toteme.com and referral to the appropriate law enforcement agencies.
Links may not be placed in newsgroups, unsolicited e-mail, ICQ, banner networks, counters, chatrooms or guestbooks. Any Link placed must be done in such a way that it is not misleading to any Visitor and done with the intention of delivering valid sales, leads, or clicks to the related Merchant for that Link.
Points or reward programs for click or lead programs are NOT allowed. toteme.com RESERVES THE RIGHT TO DEEM ANY SITE INAPPROPRIATE AND TERMINATE THE SITE AS A MEMBER OF toteme.com. If You are terminated from the Service, toteme.com has the right to withhold money You earned within the Service or money that You owe within the Service and You will not be allowed to re-join toteme.com.
The Service, its operation, its use and the results of such use shall be performed in a workmanlike manner. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, toteme.com DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE, ITS USE AND THE RESULTS OF SUCH USE. WITHOUT LIMITING THE FOREGOING, toteme.com SPECIFICALLY DISCLAIMS ANY WARRANTY (A) THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, (B) THAT DEFECTS WILL BE CORRECTED, (C) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (D) THAT THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT, OR (E) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. The Merchant will make reasonable commercial efforts to keep its transaction service operational during normal business hours. However, certain technical difficulties may, from time to time, result in temporary service interruptions. Client understands and acknowledges that it is normal to have a certain amount of system downtime and further agrees not to hold the Merchant liable for any of the consequences of such interruptions. MERCHANT SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF ANY WEB SITE OF CLIENT OR CLIENT CUSTOMER DATA FILES OR SYSTEMS OR PROGRAMS THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. MERCHANT SHALL HAVE NO LIABILITY WITH RESPECT TO MERCHANT OBLIGATIONS HEREUNDER OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF MERCHANT HAS BEEN NOTIFIED OF SUCH DAMAGES. ANY LIABILITY OF MERCHANT HEREUNDER SHALL BE LIMITED TO THE REVENUE EARNED BY MERCHANT AS A DIRECT RESULT OF THIS AGREEMENT.
toteme.com OR ITS SUPPLIERS OR RESELLERS OR MERCHANTS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING OUT OF THE USE OF OR INABILITY TO USE THE toteme.com SERVICE OR ANY INFORMATION PROVIDED ON THE toteme.com WEB SITE OR ANY OTHER HYPERLINKED WEB SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF toteme.com OR A toteme.com AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE WEB SITE OR ANY HYPERLINKED WEB SITE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, toteme.com'S LIABILITY IS LIMITED TO THE SMALLEST AMOUNT PERMITTED BY LAW. THIS PARAGRAPH WILL SURVIVE THE FAILURE OF ANY EXCLUSIVE OR LIMITED REMEDY.
You agree that toteme.com, although the provider of the Service, has no responsibility or liability as a result of Your placement of authorized Links from Your Web site, and You, and the Merchant, jointly and severally agree to indemnify, defend, and hold harmless toteme.com and its clients, officers, directors, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to any offer or any other matter related to this Agreement or the subject matter hereof and any dispute relating thereto.
toteme.com agrees to indemnify, defend, and hold harmless Client and its clients, officers, directors, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to toteme.com's negligence or willful misconduct in performance of the Services or its breach of this Agreement.
toteme.com acknowledges that in the course of this Agreement it shall have access to confidential and proprietary information ("Confidential Information") of Your company. toteme.com agrees not to disclose or disseminate the Confidential Information without Your prior express written consent. The term "Confidential Information" shall not include information that is or becomes part of the public domain through no action or omission of toteme.com that becomes available to toteme.com from third parties without knowledge by toteme.com of any breach of fiduciary duty, or that toteme.com had in its possession prior to the date of this Agreement. toteme.com does not collect information about a Merchant’s customer transactions, other than what is passed to us through the installed tracking code and displayed on Your own transaction reports. Any information we receive is used solely for tracking and Commission payment purposes. toteme.com reserves the right to be able to utilize this data in aggregate to analyze Service trends, monitor Service efficiencies, and perform such other analysis as toteme.com deems appropriate.
You, the Client, are granted a non-exclusive, limited, revocable right to use Merchant provided trademarks and banners. All images, technology and content provided for Your use is and shall remain the sole property of the Merchant, and no part thereof shall be deemed assigned or licensed to You except as explicitly provided for herein. All intellectual property rights, including trademarks, copyrights, patent rights or applications, tradenames and service marks related to the foregoing shall remain the Merchant’s sole property, including rights in and to any derivatives thereof. You may not modify the trademarks, banners, the content or any of the images provided to You in any way.
A Merchant may immediately terminate Your license to use the marks if the Merchant reasonably believes that such use dilutes, tarnishes or blurs the value of their marks. You acknowledge that Your use of the marks will not create in You, nor will You represent that You have, any right, title or interest in or to the marks other than the license granted by the Merchant above. You will not challenge the validity of or attempt to register any of the marks or Your interest therein as a licensee, nor will You adopt any derivative or confusingly similar names, brands or marks or create any combination marks with the marks. You acknowledge the Merchant’s ownership and exclusive right to use the marks and agree that all goodwill arising as a result of the use of the marks shall inure to the benefit of the Merchant.
toteme.com makes no representations whatsoever about any other Web site which You may access through the Service. In addition, a link to a non-toteme.com Web site does not mean that toteme.com endorses or accepts any responsibility for the content or the use of such Web site.
Client or toteme.com may assign this Agreement to any successor or client upon notice to the other party and mutual agreement between both parties.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes or any other cause which is beyond the reasonable control of such party.
This agreement shall be governed by and construed in accordance with the laws of the Province of Ireland. The application of the United Nations Convention on the International Sale of Goods is expressly excluded.
This Agreement represents the complete agreement concerning this license and may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.